TekSavvy Solutions Inc 800 Richmond Street TELEPHONE +1 519 360-1575 FAX 519.360.

1716
Chatham ON N2M 5J5 TOLL FREE 877-779-1575 teksavvy.com

Andy Kaplan-Myrth Legal & Regulatory Direct Line +1 819-484-1205 akaplanmyrth@teksavvy.ca

Filed via My CRTC Account

Mr. Claude Doucet, Secretary General

Canadian Radio-television and Telecommunications Commission
1 Promenade du Portage
Gatineau, Quebec J8X 4B1

13 February 2019

RE: Communications Monitoring Report 2018

Dear Mr. Doucet:

1. TekSavvy Solutions Inc. (“TekSavvy”) is writing with respect to the most recent issue of
the Communications Monitoring Report, published on 20 December 2018 (the “2018
Report”) 1.

2. Written and published by the CRTC each year, the annual Communications Monitoring
Report (the “Annual Report”) provides Canadians with comprehensive data and analysis
about Canada’s communications sector.

3. The Annual Report is a vital public resource. Each year’s edition serves as a benchmark
for Canadians to gauge the impact of CRTC policies and as a primary source of evidence
to inform their participation in CRTC proceedings.

4. However, the 2018 Report did not follow methodological standards and practices of past
Annual Reports. In particular, the 2018 Report excluded data and analysis that was
included in past Annual Reports. More concerning, the specific data that was excluded
from the 2018 Report is timely and relevant to ongoing proceedings. Indeed, parties in an
open proceeding in December 2018 cited specific data from the 2017 Report as their
primary evidence to the CRTC, just weeks before the 2018 Report was published and
such data was omitted from it.

5. Furthermore, the reporting timeline for the Annual Reports makes the importance of
thorough data all the more urgent. Annual Reports are published in November or
December of a calendar year, and they report on data from the previous calendar year.
Even when one is able to draw on information presented in the most recent report, that
data is always one to two years old. As a result, for example, when parties in December
2018 and January 2019 cited data from the 2017 Report instead of being able to draw on
the 2018 Report, they were relying on information from as far back as 2016. There is a

1 Communications Monitoring Report 2018, 20 December 2018.

 concern that information that old may be too stale to provide evidence, especially in a
proceeding that concerns current market conditions.

6. It is for that reason that TekSavvy submits this letter to the CRTC:

a. Part A explains the important public purpose of the Annual Reports, and
the methodological standards and practices required to fulfill that
purpose;

b. Part B notes specific omissions from the 2018 Report and explains why
those omissions are prejudicial in the context of ongoing proceedings;
and

c. Part C notes further unexplained omissions and methodological

changes in the 2018 Report that do not align with its public purpose.

7. In conclusion, TekSavvy asks that the CRTC (i) provide more information about the
methodological standards and practices applicable to the 2018 Report relative to past
Annual Reports; (ii) explain the rationale for its omissions and changes; and (iii) issue an
amendment or supplement to the 2018 Report that presents all omitted data and analysis
in as transparent and granular a manner possible.

A. The Annual Report serves a vital public purpose: To inform Canadians and
enhance their participation in CRTC proceedings

8. The CRTC has long recognized that its Annual Report serves a vital public purpose: To
provide Canadians with the information they require to effectively participate in its
proceedings. 2

9. Each issue of the Annual Report analyzes data from the previous calendar year and
serves as a primary source of evidence 3 for CRTC proceedings and an annual benchmark
by which the CRTC is held accountable for its decisions. 4

10. Past Annual Reports followed clear methodological standards and practices that “ensure
the accuracy and validity of the data collected in order to (a) provide Canadians with high-

2 2017 Report, ‘Purpose of the Communications Monitoring Report’: “[the Annual Report] is designed to support
evidence-based policy development, decision making, and open public discussion of broadcasting and
telecommunications regulatory policies and issues. The CRTC invites parties to use the data in this report to
enrich their participation in its regulatory and policy activities” at page 36. See also: 2016 Report, at page 36;
2015 Report, at page 5; 2014 Report, at page i; 2013 Report, at page i; 2012 Report, at page 1; 2011 Report,
at page 1; 2010 Report, at page 1.
3 2016 Report, “This report is an important tool to evaluate where we’ve been and to inform our choices moving
forward. We continue our ongoing efforts to consult with Canadians on these important topics that have great
impacts on their daily lives…”, at page 7; See also 2014 Report, “Executive Summary” “The [Annual Report]
provides a wealth of both financial and performance information on Canada’s communications market …
intended to support an open and informed public discussion.”, at page i.
4 2017 Report, ‘Who we are and what we do’, “At the heart of our mandate is the duty to serve the public interest
by putting Canadians at the centre of the communications system. To this end, our role encompasses
consulting Canadians … as well as reporting to Canadians on the progress and outcomes of our work”, at
page 40; 2010 Report, “[provides a means to assess…the effectiveness of the CRTC’s regulatory frameworks
and determinations in achieving those objectives...”, at page 1.

Page 2 of 9
 quality data to support their participation in CRTC processes and their informed decision
making, and (b) support the CRTC’s evidence-based decision-making process.” 5

11. For that reason, the CRTC issued each Annual Report as a complete document, and
attached detailed appendices explaining its methodology for that edition. Such standards,
for example, required the CRTC to adopt “uniform definitions and methodologies” 6; to
“ensure that the information provided is accurate and complete” 7; and to perform “year-
over-year comparisons to identify any significant or unexplained changes” 8.

12. If the CRTC materially changed its methodology, data or analysis from one Annual Report
to the next (for example, by adding new data and analysis, 9 omitting data and analysis
that was included in prior editions, 10 or caching surplus data in the Government’s open
data portal, rather than publishing it in the Annual Report 11), then the CRTC clearly
identified and explained such changes, additions and omissions in its new Annual Report.

13. Notably, when the CRTC modified past Annual Reports, it sought to “enhance the
relevance of the report, to take into account emerging technologies and consumption
patterns” 12 by including “new and expanded data reflecting regulatory and market
developments” since the last edition. In this way, that Annual Report provided “Canadians
with improved financial, pricing, and other key indicators and trends to further enhance
their understanding of the communications industry” 13 and to empower their participation
in its proceedings.

14. As detailed in Section B below, the 2018 Report did not adhere to these methodological
standards and practices.

B. The 2018 Report, without explanation, omitted data and analysis from past Annual
Reports, which parties had recently cited as evidence in open proceedings

5 2017 Report, “Appendix 2, Data Collection and Analysis”, at page 356.

6 2017 Report, “Appendix 1: Methodology”, at page 353.
7 2016 Report, “Appendix 2, Data Analysis”, at page 336.
8 2017 Report, “Appendix 2, Data Collection and Analysis”, at page 356.
9 2017 Report, ‘Changes to the 2017 Report’, “Updated Internet…service baskets to reflect Canadians’ move
to…higher speeds”, at page 37; 2015 Report, “Data on wholesale high-speed [Internet] speeds are now
presented”, at page 6; 2013 Report, ‘To keep abreast of the impact of market forces on consumers and on
TSPs that depend on facilities-based TSPs, companies were required to provide …more granular wholesale
details”, at page 1; 2010 Report, “This report provides greater details than previous reports on broadband
[Internet] subscriptions”, at page i; “additional indicators that address industry developments such as the
introduction of higher wireline [Internet] speeds”, at page 1, and “for the first time including subscriber data up
to 100 Mbps”, at page 141; 2009 Report; “dial-up Internet access service has given way to high-speed Internet
service...with the introduction of higher wireline [Internet] speeds”, at page 1.
10 2015 Report, “Changes to the 2015 Report’: “An International perspective section has not been included in
the 2015 as the CRTC has resolved to focus on the analysis of data it collects directly”, at page 6.
11 2015 Report, “Changes to the 2015 Report”: ‘As part of the Open Data project, the CRTC has launched
datasets on television ownership and television viewing via the Government’s Open Data portal’, at page 6.
12 2016 Report, “Changes to the 2016 Report’, at page 37.
13 2015 Report, at page 6.

Page 3 of 9
15. The CRTC published the 2018 Report in the waning days of 2018, during an open
proceeding that involves a challenge to an earlier CRTC decision to restrict competition
for Internet services. 14 That proceeding was open for public comment when the CRTC
published its 2018 Report. Yet the 2018 Report omitted data and analysis that was
critically timely to the proceeding. In fact, parties repeatedly cited that very data from past
Annual Reports as key evidence in the proceeding before the 2018 Report was published
and such data was omitted from it.

16. By way of background: In 2015, the CRTC began developing a new regulatory model for
the competitive Internet market. 15 As the CRTC expected to complete its new model in the
near future and wanted competitors to adopt it, the CRTC restricted competition on its
existing regulatory model. Since then, competitors have been capped at 50 Mbps Internet
speeds on Bell’s wholesale facilities and we will soon be capped at 100 Mbps Internet
speeds on cable wholesale facilities (the “speed caps”).

17. On 7 November 2018, TekSavvy’s industry association (“CNOC”) filed an application

asking the CRTC to remove those speed caps. CNOC argued that the speed caps harm
competitors by restricting them to outdated speeds while retail markets rapidly shift to
speeds above 50 Mbps and above 100 Mbps, and while the CRTC’s new regulatory model
remains delayed and unworkable. 16

18. In response, the CRTC opened an expedited proceeding and directed CNOC to file
evidence on the impact of its speed caps by 3 December 2018. The CRTC directed other
parties, such as TekSavvy, to submit their interventions by 7 January 2019. 17

19. Importantly, in order to prove their case to the CRTC about the actual and anticipated
harm of the speed caps, CNOC and TekSavvy were required to submit evidence of retail
market demand for Internet speeds above 50 Mbps and above 100 Mbps—i.e., the retail
markets from which competitors are restricted, or will soon be restricted, by the speed
caps.

20. CNOC filed its speed cap evidence with the CRTC on 3 December 2018. Since the CRTC
had not yet published its 2018 Report, CNOC’s submission instead relied upon the then-
most-recent 2017 Report, 18 which contained irrefutable evidence of skyrocketing
consumer demand for Internet speeds above 50 Mbps and above 100 Mbps, in the form
of a table (Table 5.3.12) showing detailed year-over-year comparisons of retail market
demand trends for 11 different retail Internet speeds, including those above 100Mbps: 19

14 Application to Review and Vary Telecom Regulatory Policy 2015-326 and Telecom Decision 2016-379, Public
process number: 2018-0953-4.
15 Telecom Regulatory Policy CRTC 2015-326, Review of wholesale wireline services and associated policies,
22 July 2015.
16 Canadian Networks Operators Consortium Inc. Part 1 Application to Review and Vary Telecom Regulatory
Policy CRTC 2015-326 and Telecom Decision CRTC 2016-379, CRTC Reference 8662-C182-201809534.
17 Telecom Procedural Letter Addressed to Distribution List, 20 November, 2018
<https://crtc.gc.ca/eng/archive/2018/lt181120a.htm>.
18 2017 Report.
19 CNOC’s “Comments in support of interim relief to remove the 100 Mbps cap”, 3 December 2018, at page 14.

Page 4 of 9
 28. CNOC wishes to highlight the following significant trends:
• The subscriber distribution for 100 Mbps and higher
nearly doubled from 2015 to 2016, from 8% to 15.8%...
29. The data is indisputable. Canadians are increasingly subscribing to
higher and higher broadband service speeds... [TekSavvy’s emphasis]

21. The CRTC published the 2018 Report on 20 December 2018. Yet the 2018 Report omitted
the retail market data for Internet speeds above 50 Mbps and above 100 Mbps that had
been included in the 2017 Report, and that CNOC had cited as evidence regarding the
harmful impacts of the speed caps on competitors. In particular, the 2018 Report replaced
the 2017 Report’s detailed Table 5.3.12, with a new Figure 5.4 that measured three ranges
of retail Internet speeds – the highest of which obscures information about the share of
the market using speeds above 50 Mbps.:

Page 5 of 9
22. The 2018 Report did not identify or explain this omission. That this data had been omitted
from 2018 Report is especially surprising not only given its relevance to the open
proceeding, but also because the 2018 Report includes statistics derived from the omitted
data. For example, it cites a standalone subscriber distribution statistic for the very fastest
Internet plans on the market (1.2%) 20. It also notes that the weighted average speed of all
residential subscriptions was 68 Mbps, “far faster than the 15 Mbps average in 2013” 21
and, it must be noted, far faster than 50 Mbps, the speed at which TekSavvy’s retail
business is capped on Bell’s wholesale facilities.

23. TekSavvy filed its intervention on 7 January 2018. 22 TekSavvy noted that the 2018 Report
excluded data that was relevant and timely to the proceeding. 23 TekSavvy further asked
the CRTC to restore its speed matching rule 24 because the 50 Mbps speed cap impairs
TekSavvy’s ability to compete in key retail markets where Bell offers six faster speeds: 25

42. [T]he 50 Cap has irreparably harmed competitors who rely upon [Bell’s
wholesale facilities]…the anticompetitive impacts of the 50 Cap are being
felt most strongly and immediately in Ontario and Quebec, where…Bell
currently offers six retail Internet service speeds above the 50 Cap, all of
which are rapidly being adopted by consumers.

43. To reiterate: TekSavvy is denied access to any wholesale speed on

Bell’s network that is as fast as the 6 highest retail speeds offered by Bell
throughout its incumbent serving territories. To understand how the 50
Cap impairs competitors in Ontario and Quebec, look at Bell’s website,
which is promoting Bell’s retail monopoly on 1.5 gigabit speeds.

24. TekSavvy did not submit evidence of retail market trends for those faster Internet speeds
because such data and analysis had been omitted from the 2018 Report. TekSavvy later
learned that, at the same time that the CRTC published its 2018 Report, it also archived
datasets relating to the 2018 Report in the Government’s open data portal, in the form of
spreadsheet tabs.

25. Most datasets corresponded exactly to those figures and tables that had been published
in the 2018 Report and replicated, by way of individual Excel sheets, the name, number,
and data from its matching figure or table in the 2018 Report.

20 2018 Report at page 10.

21 2018 Report, Infographic 5.2, at page 5.
22 TekSavvy intervention concerning interim relief, suspension of 100 Mbps speed cap condition, and
restoration of speed matching requirement, 7 January 2018,
<https://services.crtc.gc.ca/pub/DocWebBroker/OpenDocument.aspx?DMID=3566192>, [“TekSavvy
Intervention”].
23 Id at footnote 48.
24
The CRTC’s speed matching requirement ensured that the large Incumbent carriers would sell TekSavvy
wholesale services that enable TekSavvy to offer equally fast retail Internet speeds as the large carriers.
Telecom Regulatory Policy CRTC 2010-632, Wholesale high-speed access services proceeding, 30 August
2010, at para 29.
25 TekSavvy Intervention, paras 42, 43.

Page 6 of 9
26. However, among the datasets that had been published in the 2018 Report, the CRTC also
archived certain datasets that it omitted from the 2018 Report. In particular, within a cache
of 42 datasets archived in the Fixed Internet section of the Government’s open data portal,
the CRTC deposited a dataset entitled “Table 5.15 (S), Residential Internet service one-
month subscriber distribution.” 26

27. This archived table 5.15 (S) from the archived 2018 dataset is analogous to the Table
5.3.12 that was published in the 2017 Report, cited above. It showed consumer demand
for Internet speeds above 50 Mbps and above 100 Mbps via detailed year-over-year
comparisons of retail market demand trends for 11 different retail Internet speeds,
including those above 100 Mbps and, but for its omission from the 2018 Report, would
have been timely to reveal that 25.8% of residential retail subscribers in 2017 had services
with advertised speeds of 100 Mbps or higher.

28. Despite the stated public purpose of its Annual Report, the timeliness and relevance of
the available data, the fact that these very data points from the 2017 Report had been
repeatedly cited as evidence by parties to open proceedings, and its established
methodology of publishing and analyzing such data in past Annual Reports, the CRTC not
only omitted this data from the 2018 Report but did so without identifying or explaining
those changes to its methodology or noting the location where such omitted data was
archived.

29. Moreover, in the context of an open proceeding about the impact of Internet speed caps
on competition in an era of rapid consumer uptake of higher speed Internet services, the
2018 Report ought to have provided even more expansive and relevant retail market data
for Internet speeds than that was included in the 2017 Report, and presented granular
data on all higher retail speeds, including those between 50 Mbps and 1.5 Gbps.

C. The 2018 Report includes further unexplained omissions and methodological

changes that do not align with its public purpose

30. In the time since the above-cited speed cap proceeding closed on 17 January 2019,
TekSavvy has had the opportunity to review the 2018 Report in detail and in comparison
to previous Annual Reports. TekSavvy has identified other material changes and
omissions in the 2018 Report. Similar to the case described above, these changes and
omissions were neither identified nor explained in the 2018 Report and are prejudicial to
competitors and to the public interest. They include:

a. Departing from at least 9 years of consistent methodological practice 27 to create

a new classification of Canadian telecommunications service provider
(“Independent ISPs”), by inexplicably combining two preexisting categories,
namely: (i) resellers (such as TekSavvy), and (ii) other facilities-based service

26
2018 CMR-Fixed Internet, CMR 2018 - Retail Fixed Internet Sector and Broadband Availability, 19
December 2018, at Table 5.15 (S),
<https://applications.crtc.gc.ca/OpenData/CASP/Retail%20Fixed%20Internet%20Sector%20and%20Broadb
and%20Availability/English/2018_CMR_-_Fixed_Internet.zip>.
27 2010 Report, Appendix 2 2010 at page 2.

Page 7 of 9
 providers (such as Xplornet), to support a single statistic: “Independent ISPs
accounted for 13% of Internet service subscriptions”, thereby obscuring statistics
for the traditional “reseller” category alone;

b. Omitting all data and analysis concerning resellers’ wireline revenue market
share, despite the 2017 Report’s detailed breakdown of such information, in
comparison to other service providers; 28

c. Omitting all data and analysis on resellers’ capital investments, despite the 2017
Report’s detailed year over year comparison of investment in plant and
equipment; 29

d. Omitting nearly 17 pages of data and analysis on the wholesale

telecommunications sector (removing 95% of the data and analysis included in
the 2017 Report);

e. Omitting all data and analysis on resellers’ total share of communications

revenues, despite the 2017 Report’s detailed year over year comparison of
resellers total revenue relative to other types of service providers; 30

f. Failing to publish a comprehensive report in the form a single document with

appendices describing the CRTC’s methodology for the entire edition.

31. Contrary to its practice in past Annual Reports, and despite each change being directly
relevant to ongoing proceedings, the CRTC neither identified nor explained any of these
changes.

D. Conclusion

32. The Annual Reports serve a critical public purpose, which can only be fulfilled through
consistent and transparent methodological standard and practices. The 2018 Report did
not adhere to such standards and practices and therefore it did not fulfil its public purpose.

33. For that reason, TekSavvy respectfully asks that the CRTC (i) provide all relevant
information about the methodological standards and practices applicable to the 2018
Report, relative to prior Annual Reports; (ii) explain the rationale for its unexplained
omissions and changes; and (iii) issue an amendment or supplement to the 2018 Report
that presents all omitted data and analysis in as transparent and granular a manner
possible so that Canadians may effectively participate in its proceedings.

28 CMR 2017, section 5.1, Table 5.1.3 Wireline telecommunications revenue market share (%) by type of
service provider, 2016 at page 230.
29 CMR 2017, section 5, Table 5.05. Telecommunications investments made in plant and equipment, by type
of provider of telecommunications services at page 219.
30 CMR 2017, Table 3.0.3. Communications revenues, by type of service provider ($ Billions) at page 82.

Page 8 of 9
Yours very truly,

[transmitted electronically]

Andy Kaplan-Myrth
VP, Regulatory & Carrier Affairs

cc:
Lyne Renaud, CRTC
William Lloyd, CRTC
Distribution List in CRTC procedural letter dated 20 November 2018
Kyle Mitchell, TekSavvy (KMitchell@teksavvy.ca)
Janet Lo, TekSavvy (JLo@teksavvy.ca)

*** END OF DOCUMENT ***

Page 9 of 9